STATE'S BRIEF ARGUES HADFIELD SHOULD BE IN PRISON

Convicted child molester Allan B. Hadfield should go to prison because he has never admitted he molested his two children and so should not have qualified for special treatment under the incest exception to Utah's mandatory sentencing standards.

That's one of several reasons prosecutors believe 4th District Judge Cullen Y. Christensen should be forced to resentence Hadfield to a prison term instead of giving him 10 years probation. In a brief filed Monday in support of a request for a special writ, Assistant Attorney General Robert N. Parrish, prosecutor in the sensational Lehi sex-abuse case, asks the Utah Supreme Court to send the case back to Christensen for resentencing.Parrish acknowledges convincing the justices to overrule Christensen will be tough going. Appellate courts are inclined to defer to the broad discretion of trial judges. But Parrish argues in his brief that Christensen's sentence simply was not supported by the evidence.

"The Supreme Court will give quite a bit of weight to the judge's view of the evidence," Parrish said. "But when he is missing the point or finding that there is evidence when there is no evidence, it is easier to show an abuse of discretion."

Hadfield, 37, was convicted in December of sexually abusing and sodomizing his 12-year-old son and 10-year-old daughter. Although Hadfield was the only one charged, media reports of a supposed child sex-abuse "ring" in Hadfield's Lehi neighborhood galvanized the community into strong pro- and anti-Hadfield camps.

Despite the severity of the crime, Hadfield was given 10 years' probation under an exception in Utah law for cases of incest. The judge found Hadfield met 12 criteria necessary to qualify for the incest exception, but Parrish argues that Hadfield fails on at least six of them. He argues in the brief that the judge wrongfully shifted the burden of proof away from Hadfield and onto the prosecution.

"What we're saying is that in several of the circumstances the judge shifted the burden of proof to us in his ruling, which is also an abuse of discretion," he said.

Defense attorney Bradley P. Rich could not be reached immediately for comment.

Two of the criteria have to do with treatment of the offender. One criterion requires that the defendant has been accepted into a recognized program designed to treat the specific kind of sexual abuse that occurred in the case at hand. A second requires that the prospects for rehabilitation are good.

Parrish believes Hadfield fails on both counts.

"Our expert, Dr. Jeb Brown, said there's no way to treat someone who doesn't admit he has a problem," Parrish said. "You can't change a behavioral problem unless there's some admission and some desire to be treated."

Parrish attacks the testimony of defense expert, psychologist Robert Card, who said he could treat Hadfield even without an admission of guilt. The prosecutor said a careful review of Card's testimony at the sentencing shows that he never said he can treat Hadfield for incest.

"What he said he would treat Hadfield for would be the stress relating to being charged with a crime," Parrish said. "But that's not what the Legislature had in mind."

The likelihood that Hadfield could be successfully treated is also highly questionable in Parrish's estimation. He said that even Card acknowledged treating someone like Hadfield without an agreed upon basis of need for treatment and some recognizable treatment goal is "problematic."

"What Card is saying is, `This guy tests fairly normal. He doesn't test like a sexual deviate, like a sex offender. And so I don't think there's any treatment that's needed.' But that fails to address the situational incest offender that truly doesn't have a sexual attraction to kids as such, but does have, at some point, marital problems or whatever other stresses in his life that causes him to turn to kids for sex. That's still a behavioral problem and it's still something that could be repeated and needs to be treated."

Two other criteria have to do with whether the victims suffered severe bodily or psychological harm. The judge did not deny the children were injured both physically and mentally by the ordeal, but he nonetheless found Hadfield met those criteria on technical grounds.

Forensic experts testified that the children showed evidence of rectal trauma from apparent abuse. But Rich, Hadfield's attorney, argued that bodily injury, as defined in the statute, meant some sort of assault, and Christensen was convinced.

"But that wasn't it at all," Parrish said. "The idea was to judge the severity of the sexual conduct by the physical injury that's caused."

As for psychological injury, Rich argued that because there were claims that the children were abused by others, it was impossible to separate the abuse caused by Hadfield from that caused by the other offenders.

On that point, Parrish is blunt: "It was a bunch of garbage. It was a sidetrack. There was no evidence (that others were involved). In fact, throughout the trial, Brad was trying to prove that nobody abused these kids."

Parrish said he got his biggest jolt when the judge ruled that the Hadfield case did not involve multiple victims, which is another criterion. Rich argued that the law meant there must be other victims outside the family and the judge apparently accepted that assertion.

"That caught me by surprise because I thought it was pretty clear that this was a multiple-victim case and that the defendant needed to show that even though there were two victims in the same family he still ought to qualify for probation because of unusual circumstances," Parrish said.

Finally, Parrish argues that Hadfield does not qualify under a criterion allowing the offender to remain out of prison if it is in the best interest of the children. He said the Legislature intended that portion to help the offender who has admitted his guilt and wants to try to keep his family together.

"That's not going to happen in this case," Parrish said. "We have a divorce that's final and Hadfield's not admitting he did anything and he doesn't want treatment."